Marijuana

Published on: January 25, 2017

Maryland Court Rules Marijuana Smell Justifies Search

While the ruling was highly anticipated, it came as no surprise that The Court of Appeals unanimously held that the smell of marijuana during a traffic stop justifies an officer’s search of a vehicle. The decision handed down at the end of last week didn’t change anything, as law enforcement never stopped using the smell of pot to justify their searches. Rather the opinion will serve to temporarily put the issue to bed for at least a few years until it is rendered obsolete after marijuana is eventually legalized.

The Court of Appeals opinion handed down last Friday was actually a combined ruling for three separate cases and spelled bad news for the defendants that had been anxiously awaiting closure. Two of the cases originated in Baltimore City, and the other began in Cambridge at the Dorchester County Circuit Court. In all three cases the defendants filed motions to suppress evidence including marijuana, cocaine, oxycodone and drug paraphernalia, which was recovered after police officers conducted an automobile search. The justification for the searches was police officers allegedly smelling marijuana. All the defendants argued that at the time officers initiated the searches they did not have reasonable articulable suspicion to believe that the cars contained more than 10 grams of marijuana. Possession of less than 10 grams of marijuana was and still is only punishable by a civil fine, and therefore according to the defendants could not justify a search under the automobile exception to the Fourth Amendment.

The circuit court judges were not persuaded by the defendant’s positions, and sided with the state’s attorneys who argued that despite being only punishable by a civil fine, small amounts of marijuana remained contraband. They argued that decriminalization and legalization are not synonymous, and therefore the presence of any illegal substance justifies a broader search. All three cases traveled to the Court of Special Appeals, which is Maryland’s intermediate appellate court. This court denied the appeals in unpublished opinions and then state’s highest court accepted the cases on writs of certiorari. Arguments took place back in December, and it did not take long for the Court of Appeals to hand down the disappointing but legally sound opinion.

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Published on: December 7, 2016

Maryland Court To Decide Key Marijuana Search Issue

By Benjamin Herbst

As states move toward placing marijuana policy in the hands of voters and for the most part legalizing it, Maryland is still stuck in the dark ages where pot ties up court resources, and has lawmakers and lawyers up in arms. Medical marijuana has already invaded the civil courts, as multiple lawsuits over the grower licensing system are pending. And while we are seeing a significantly lower amount of marijuana cases prosecuted since possession under 10 grams became decriminalized, pot is still a common cause of litigation in criminal courts. Not only are there still numerous new cases filed each year for criminal possession, manufacturing and distribution of marijuana, but there are also a host of new legal issues involving law enforcement search and seizures.

When the legislature decriminalized simple possession it immediately created a grey area for probable cause searches under the Fourth Amendment. Normally a police officer is justified to search a person and his or her automobile if the officer gathers information that objectively leads to the conclusion that that a crime has likely occurred. This, save for a few minor twists, is probable cause in a nutshell. The Maryland decriminalization law left a major ambiguity in whether the discovery of a non-criminal amount of marijuana would justify a broader search of the suspect and his or her car. These broader searches usually turn up other evidence such as narcotics and firearms, which is why the issue is far reaching. We’re not just dealing with pot cases here. In fact, the Court of Appeals in Annapolis recently heard oral arguments on three cases where officers conducted Fourth Amendment searches based solely on the odor of marijuana. The trial courts and the Special Court of Appeals all ruled in favor of the prosecution that the searches were valid, and now the highest court will issue their opinion in the next few weeks.

Defense lawyers and civil rights advocates have argued that smelling burnt or raw pot, or finding less than 10 grams of it without more does not rise to the level of evidence that a crime has occurred, and would not justify a broader search. Rather, an officer who smells or recovers a non-criminal amount of pot must issue a civil citation, confiscate the weed and move on. The government has argued that no amount of marijuana is legal in Maryland, and therefore police are authorized to search for and seize anything unlawful. The government has emphasized that a civil offense is still an offense, and the fine for simple possession is used to punish unlawful behavior. An assistant attorney general also argued that presence of the drug is enough evidence to provide officers with probable cause that more will be found, an argument does not seem to have any sort of factual basis.

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Published on: November 16, 2016

State Docs Not Jumping Aboard Medical Marijuana

By Benjamin Herbst

Medical marijuana has had a tough time catching on in Maryland as roadblocks have sprung up each step of the way. First the legislature failed to craft a legitimate medical cannabis program, and a year later when a real program arrived they failed to adequately fund a commission to draft its rules. Then the underfunded and inexperienced commission drastically miscalculated the number of expected grower and distributor applications, which lead to massive delays in the awarding of licenses. When the licenses were finally awarded three potential growers sued for unjust denial of their applications, and their cases are pending in court. Many of these roadblocks were predictable, and could have been avoided with greater cooperation among politicians and more resources dedicated to the launching the program. However the latest roadblock was not expected and could end up disrupting the medical marijuana program if and when it finally gets rolling.

A public records request revealed that only 172 Maryland doctors have signed up to potentially prescribe medical marijuana, which translates to about 1 percent of the 16,000 docs practicing medicine in the state. State officials are concerned that the lack of prescribing doctors could cause a serious bottleneck in the process of getting medical pot to the patient. We will certainly have enough growers, distributors and buyers, but the chain is not complete without the doctors writing the scripts. Potential patients could be forced to wait weeks or even months to see a doctor, and the huge numbers game could cause these doctors to fly through screenings at a pace similar to the pill mills that lawmakers and medical boards are trying to eliminate. Officials at MedChi fear that the end result will be the medical marijuana program becoming a façade for recreational use, as doctors with long lines of patients will be ill prepared to distinguish those with a medical need from those who simply want to enjoy high quality pot.

Once the program gets going there will likely be more doctors jumping on board. The free market will work itself out and doctors will eventually see the positives in running a lucrative and legitimate business that does not involve being on call at all hours of the night. An influx of new doctors who are more open to alternative types of medicine will also be more likely to stand behind the benefits of marijuana and less hesitant to prescribe it. A lack of doctors is not likely to be the downfall of the state’s already troubled medical marijuana program, as legalization will eventually be the kill shot for medical pot. Patients who benefit from ingesting cannabis may have to jump through hoops and wait in long lines for a year or two in order to legally obtain relief, but the day is coming when a trip to the dispensary and a valid ID is all it will take for access to all forms of cannabis. The federal government may be slow to change its designation of marijuana as a schedule 1 controlled substance, but the new administration will let the states decide their own pot policies. The people have spoken in influential states such as California and Massachusetts and it’s only a matter of time before the issue goes to a vote in Maryland.

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Published on: October 17, 2016

Maryland Sporting Slowest Medical Marijuana Program In U.S.

By Benjamin Herbst

Just shy of ten years ago the Maryland legislature voted to legalize statewide casino gambling. The governor signed the gambling bill into law shortly thereafter, and three years later the first casino opened its doors for business in Cecil County. The five operational casinos in Maryland have generated over a billion dollars in revenue since 2010, and come December this number will increase dramatically with the opening of the massive MGM National Harbor Casino in Prince George’s County. Most would consider the casino program a success as thousands of jobs have been created to go along with the millions in tax revenue. While it took decades to pass legalized gambling, the process of turning a signed bill into an open casino progressed relatively smoothly, and was night and day compared to the state medical marijuana program’s progression from bill to pot shop.

The Blog has been extremely critical of the state medical marijuana commission moving at a snail’s pace to award licenses to grow and sell medical pot, but some of the blame should also fall on lawmakers. In 2007 when gambling became legal the legislature added four full-time members to the Maryland Lottery Commission to oversee the process of awarding casino licenses. The members were given a 2.3 million dollar budget, and were able to use this money to hire industry experts to help hammer out the licensing process. In contrast, the medical marijuana commission consisted of volunteer members and a $125,000 yearly budget. The committee members were not experts, and had no firsthand knowledge of how to create a medical marijuana program. There were doctors, lawyers and police officers but nobody even resembling a marijuana producer or distributor. Their paltry budget made it nearly impossible to hire experts from the private sector or from other states with existing programs, and the result is a medical pot program that has taken longer to get off the ground than the 25 other programs in the country.

The failure of lawmakers to appropriately equip the current commission stems from their creation of the bust that was the 2013 medical marijuana law. Lawmakers created the commission to oversee the original 2013 medical pot law, which only permitted the program to function through public and private academic institutions. The 2013 law focused on studying the effects of medical marijuana through the legal treatment of patients with cannabis, and relied on universities risking loss of their federal funding to research a theory that has already been proven (medical marijuana works). There were predictably no takers and a year later lawmakers created a legitimate program that would be run by private businesses, thus shifting the focus of the program from research to profit. The problem was that existing medical marijuana commission did not receive the complete overhaul it needed to account for this 180-degree change. Regulating numerous businesses that stand to make millions is an entire different animal than regulating a few universities that aren’t in it for the money.

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Published on: September 22, 2016

Marijuana Grower Files Lawsuit Against Maryland

By Benjamin Herbst

Even before the medical marijuana commission began the selection process for awarding grower and distributor licenses it was hypothesized that some losing applicants would sue over the unfair process. According to newly drafted regulations, hundreds of qualified applicants ready and able to provide patients with medical cannabis would never get their chance. By drastically limiting the number of licenses, the commission thought it would put the state in a better position to regulate the program, but all it really did was ensure that numerous highly qualified candidates would be shutout. And with tens of millions of dollars at stake it was extremely likely that some of these qualified applicants would not just accept losing, but rather take their fight to the courts. Well, this week the hypothesis rang true as a losing company that planned to grow legal pot in Washington County filed a lawsuit against the Medical Marijuana Commission and the Department of Health and Mental Hygiene. The company filed suit in the Circuit Court for Baltimore City, and served it on the Attorney General’s Office soon thereafter.

The plaintiff is the same company that we wrote about in our last Blog post, which was originally awarded a license to grow pot but then stripped of it in favor of a Prince George’s County grower just 48 hours later in the interest of “geographical diversity”. If lawsuits against the commission and the DHMH were highly probable at outset of this flawed process, the commissioner’s suspicious change of heart in July made them a mathematical certainty. There was simply no way that the two companies who lost their golden tickets in the eleventh hour would stand down and not take the state to court. In addition to filing suit, the aforementioned company already began to wage a public battle against the process with lawyers and a well known ex NFL player going on camera to bash the unfair process. The former Raven offensive tackle turned medical cannabis investor has been outspoken about the NFL’s archaic policies toward marijuana for a few years, and is well versed relaying his opinions to the media.

The other company that was shut out after the commission’s flip flop has yet to file their lawsuit, though at this point it seems like a foregone conclusion. These lawsuits will probably delay the entire medical marijuana program yet again, but don’t blame the profit seeking growers and their lawyers. Lawmakers took years to pass legitimate medical cannabis legislation, and the commission had months to decide on regulations for the program. Both had dozens of already existing state programs to look at for guidance, but they valued creating a uniquely Maryland program over mimicking one of the many already successful platforms. The patients in need of alternative treatments to narcotic drugs and other prescription medications are the one’s who have suffered, and now it looks as if the relief is even further away. The company who filed the lawsuit has stated publicly that that it does not wish for its litigation to hold up the program’s progress, though delays seems inescapable. Latest predictions have medical marijuana being available in the summer of 2017 but timeliness is not something we have come to expect.

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Published on: September 19, 2016

More Issues For Medical Marijuana

By Benjamin Herbst

First, state politicians passed a completely ineffective medical marijuana law that unsurprisingly had zero takers. Then a year later when a legitimate medical marijuana program became state law, the commission in charge of writing the policy dragged its feet for months. After going well beyond the allotted time frame for which to craft the regulations of the program, the newly created commission began to accept applications. But as had been the case for the last three years, the commission delayed the process yet again by drastically underestimating the length of time it would take to review the applications. Finally, after two years the commission began awarding licenses to legally grow pot to the 15 (a completely arbitrary number) most qualified candidates. With the licenses issued it was finally time to get to work and plant the first seeds that would ultimately be used to legally treat patients with cannabis for the first time in Maryland history. This was exciting stuff indeed, but lest the reader think that this story has a happy ending we would remind you that nothing related to medical marijuana has come easy in our great state, and awarding the licenses now seems like the beginning of a long battle rather than the end of one.

The medical marijuana commission has taken a ton of heat for not awarding grow licenses to minority owned candidates. This issue has grabbed most of the headlines and has minority leaders up in arms about the process, but it is not the commission’s only highly criticized move of the summer. According to public records the five-member commission chose to award licenses to the top 15 rated candidates, as rated by an independent application reviewer, toward the end of July. Then a week later the members went back on their decision and dropped the last two to make the cut in favor of lower ranked candidates. Apparently one commissioner, a Prince George’s County law enforcement officer, persuaded the other four members to award a license to a PG County applicant instead of a Washington County operation that was ranked higher and had already been selected. A Frederick County applicant was also dropped in favor of a lower ranked Worcester County operation. The dropped applicants were outraged when they caught wind of this change of heart, and rightly so.

While state regulators included geographical diversity as a key factor in awarding the licenses it was never intended to shut out otherwise qualified candidates. But this is exactly what happened when less qualified applicants received licenses solely based on their location. The point of hiring an independent application evaluator was to take any sort of subjectivity and bias out of the process. But it’s easy to see that objectivity goes out the window when a commissioner who has spent his career working in Prince George’s County convinces the other members to select a less qualified candidate from his home county. Even if there were only good intentions the sudden change of heart gives off a strong feeling of impropriety, which is something the commission can ill afford at this time.

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Published on: September 1, 2016

Intricate Montgomery County Marijuana Ring Busted

By Benjamin Herbst

Six suspects have been charged with numerous drug crimes after local and federal police officers busted a large-scale marijuana distribution ring operating out of multiple quiet suburban neighborhoods. While the operation was based Montgomery County, where the charges have been filed, the six young men allegedly operated out of numerous storehouses for their product in other areas such as Baltimore County and even Virginia. According to police, the pot would be shipped in from California or Oregon and delivered to various homes in nondescript packages by the U.S. Postal Service. A network of dealers would then spread the product around, sometimes using Uber as their method of transportation. Montgomery County Police and the Postal Police worked together on the investigation, which yielded a seizure of upwards of 85 pounds of pot worth over $300,000 on the street. Although multiple people have been charged, investigators believe they have singled out the mastermind of the operation, a 22 year-old man who lives in Hagerstown.

The young man from Washington County was recently indicted on two felony drug trafficking counts, including the rarely used drug kingpin statute. This law was created to deter drug trafficking in Maryland, although it would be hard to argue it has been successful. The drug kingpin law targets those defendants that are alleged to be the organizers, financers or managers of a large conspiracy to bring controlled substances into the state for distribution. The penalties upon conviction are extremely harsh, and can in fact carry a stiffer sentence than violent crimes such as armed robbery and even second-degree murder. A drug kingpin defendant faces up to forty years in prison and an exorbitant one million dollar fine, but the real kicker is the 20-year minimum mandatory sentence that must be imposed upon conviction, and is not parole eligible. To put it into perspective, a person convicted of robbery with a firearm will spend 5 years in prison without being eligible for parole, while a typical second-degree murder convict could expect between 15 and 40 years of parole eligible incarceration. But under Maryland law a non-violent large-scale marijuana dealer faces an obscene two decades in prison, which unfortunately was not modified in the Justice Reinvestment Act that goes into effect this year.

Despite the fact that the young marijuana mogul faces an uphill battle in court, he will thankfully not likely have to contend with a 20-year minimum sentence. The alleged Hagerstown drug runner was also charged with importation of a controlled dangerous substance or CDS under Maryland criminal law 5-614. This statute covers trafficking large amounts of all types of drugs including marijuana, cocaine and heroin. Under this law, transporting between 5 and 45 kilograms of pot falls under the section with a 10-year maximum punishment. While it is not a guarantee, the state will probably use the kingpin statute as a deterrent to having prove the case at what will undoubtedly be a complex and time consuming trial. They will probably offer a plea to the transportation statute, which carries twice the prison exposure as the standard marijuana distribution/ possession with intent law, and does not carry a minimum mandatory sentence. This is clearly just an educated guess, but it would seem like reasonable plea offer if after going over the discovery it’s clear that the state can actually prove its case. The Blog will follow this case as is progresses through the circuit court in Rockville, and we may most a follow up article if necessary.

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Published on: July 30, 2016

Police Chief Suggests Relaxed Marijuana Hiring Policy

By Benjamin Herbst

While Maryland is hardly the foremost state when it comes to progressive marijuana policies, it has experienced a significant evolution over the past five years. In 2010 possession of trace amounts of marijuana was punishable by up to a year in jail, and medical marijuana was still a pipedream. As it stands now possession of small amounts of pot and the paraphernalia accompanying it is no longer a crime, and we are weeks away from the first grow facilities and dispensaries receiving their official licenses. Despite these significant changes to criminal laws, modified marijuana rules for the workplace have not yet taken shape.

Many employers in the public and private sector still drug test their employees for the presence of marijuana, and a positive test can cost someone their job. This has become a highly publicized issue in the National Football League, which has teams in states where marijuana use is legal. It is also an issue with respect to government jobs, where teachers, utility workers, court staff and many others face antiquated drug testing policies that punish marijuana use but don’t mention a thing about alcohol. No public sector job is as restrictive as law enforcement when it comes to marijuana use, which is understandable save for the fact that many law enforcement agencies focus on past pot use rather than current use. Maryland has some of the harshest regulations concerning prior marijuana use for its police officers, and at least one police chief believes it’s time for a change.

The Maryland Police Training Commission, which is responsible for establishing hiring regulations for all law enforcement agencies in the state outright disqualifies any applicant that has used marijuana more than 20 times, or more than 5 times after turning age 21. This policy has been in place since the 70’s, and was likely in response to then President Nixon declaring a national war on drugs in 1971. Forty years later the rigid hiring restrictions are still in place, and the Baltimore City Police chief is tired of turning away otherwise qualified applicants based on honest answers in their cadet applications. The city chief has suggested that the rule be changed to prohibit hiring only those that have used marijuana in the past 3 years. This is definitely a step in the right direction, and the chief should be commended for speaking out against this arcane regulation. In reality though this suggestion still comes up short in where we need to be in 2016.

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Published on: June 23, 2016

State Police Announce Massive I95 Pot Bust

By Benjamin Herbst

The Maryland State Police recently announced one of the largest highway pot busts in years after two young men from Philadelphia were caught driving with over 900 pounds of marijuana. The bust began as a routine traffic stop of a U-Haul van for an alleged unsafe lane change on the northbound side of I95 near Elkton. As the trooper was conducting the traffic stop he apparently noticed suspicious signs of criminal activity, and then brought out his drug sniffing K9 to assist. The dog alerted the trooper to the presence of a controlled substance, which led to a search of the van. Considering the amount of pot that was recovered it probably didn’t take long for the trooper to locate the stash and then arrest the two unlucky travelers. As it stands now, both occupants of the van are charged with four separate criminal charges, three of which are felonies. To add insult to injury, the driver was also cited for a $90 moving violation for his alleged unsafe lane change.

The two men are charged with possession of marijuana, but this is undoubtedly the least of their troubles. Each also faces possession with intent to distribute, which carries a maximum penalty of 5 years in prison, and one count of large amount controlled dangerous substance possession. Upon conviction, this charge has a minimum sentence of 5 years, and no portion of the sentence can be suspended. While the Justice Reinvestment Act will soon phase out minimum mandatory sentences for many drug crimes, the 5-year large amount sentence will remain law. This statute includes almost every street drug, including cocaine, meth, and opioids such as heroin and oxycodone. The amount required for a “large amount” charge varies by drug, but for marijuana all that is required is 50 pounds or more.

The fourth and final charge that the two young men are facing falls under a seldom used law that makes it illegal to import certain controlled substances into the state. This offense makes it a felony punishable by up to 25 years in prison to bring large amounts of drugs into Maryland. The cutoff for marijuana is oddly 45 kilograms, which is about twice the amount required under the large amount statute. Importing between 5 and 45 kilograms of pot triggers a lower maximum jail sentence of ten years. This offense is relatively rare for state court because multi state drug trafficking cases are often handled by federal law enforcement such as the DEA. In this specific case though there was no ongoing investigation, but rather the trooper basically just stumbled upon this mega stash of pot. This offense can also create issues for the prosecution, as it is an essential element of the charge to actually prove the defendants brought drugs in from beyond the border. In this case the state will need to prove more than just the fact that the defendants are from Pennsylvania, or that the van was rented in another state.

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Published on: June 15, 2016

Narcotic Overdoses Spike In 2015

By Benjamin Herbst

The Maryland Department of Health and Mental Hygiene recently released its report on drug and alcohol related intoxication deaths for 2015, and the data shows multiple alarming trends. Last year was the deadliest year on record with regard to state drug and alcohol overdoses. A total of 1,259 people succumbed to high levels of intoxication in 2015, which represents a 20 percent increase from 2014 and the fifth year in a row that the number has increased. One of the most alarming trends is the high number of fentanyl related deaths that are quickly becoming a major concern across the country. Fentanyl is a powerful narcotic that became popular for treating severe localized pain through adhesive patches that are placed directly on the skin. These patches are slow acting and provide long-lasting pain relief without an intense narcotic effect. Recreational drug users have little use for the patches as intended, but have found numerous ways to extract the narcotic and combine it with other drugs such as heroin. Illicit use of fentanyl produces an intense high that can be many times more powerful than heroin, and often times more deadly. From 2007 to 2012 there were about 30 fentanyl related overdoses a year in Maryland, but the last three years have seen a dramatic increase. In 2013 and 2014 there were 58 and 186, and last year there were a shocking 340 fentanyl related deaths in the state.

Politicians and other public officials have placed more emphasis than ever on combating the heroin epidemic, and the data supports their cause. Heroin related overdose deaths once again rose dramatically in 2015, with 748 cases reported statewide. This is more than double the average number of overdoses from 2007 to 2012. In contrast, the number of prescription opioid overdose deaths from drugs such as oxycodone has remained relatively the same since 2007, especially when factoring in population increases. The same can be said for cocaine related deaths, which were actually lower last year than in 2007. Benzodiazepine overdoses from drugs such as alprazolam (Xanax) and diazepam (Valium) have risen steadily over the last 8 years, but the 91 deaths in 2015 pale in comparison to heroin and fentanyl.

Readers of the DHMH report will notice that marijuana is nowhere to be seen in any of the overdose data, yet alcohol is high up on the list of killers. Alcohol is so ingrained in our country’s culture that it continually receives a pass despite its deadly consequences. There were 309 alcohol related overdose deaths last year in Maryland, and thousands more injuries, incidents of violence, and auto accidents that were caused by alcohol intoxication. Alcohol is available on every street corner yet it’s taking our state years to formulate highly restrictive regulations on where one can grow and sell medical marijuana. While this is a bit of a tangent, it continues to baffle the Blog.

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